July 18, 2006

Asymmetrical Warfare

The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.

How did we get to this Osama in Genevaland world? Credit belongs to last week's Hamdan Supreme Court decision, and to Pentagon officials who have overinterpreted the meaning of that decision. Deputy Secretary of Defense Gordon England signed the memo, and our sources tell us it was issued without any wide deliberation with, or even particular awareness by, the White House Counsel's office or the Justice Department. (A White House spokesman didn't respond to our query.)

Mr. England's memo overturns a 2002 Justice Department memo that ruled explicitly that the Geneva Conventions did not apply to members of al Qaeda or the Taliban, a policy change the White House confirmed late on Tuesday. For an Administration that has fought so hard, and in our view rightly, to protect its executive powers, this is being heralded as an embarrassing reversal. It also has the smell of a bureaucratic fiasco, since we can't recall another situation in which Presidential power was so freely handed away. ...

By identifying terrorists as illegal combatants and treating them accordingly, the Administration was attempting to remedy the defects of the pre-September 11 legal architecture for handling terrorists. The pre-9/11 view divided the world between combatants and noncombatants, and viewed terrorism as just another crime to be dealt with through the existing criminal-justice system.

We have learned the hard way that that approach doesn't work. The criminal-justice system takes too long and is complicated by the government's need to keep military secrets. Moreover, according such rights to terrorists who murder women and children gives them moral legitimacy that will make winning this war that much harder. It elevates terrorists nearly to the level of GIs who obey formal rules of engagement and who can be, and as we've seen often are, punished severely for harming innocents.